Citation Nr: 1311526 Decision Date: 04/08/13 Archive Date: 04/19/13 DOCKET NO. 10-43 656 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for renal cell carcinoma, status post nephrectomy, claimed to be the result of exposure to herbicides. REPRESENTATION Appellant represented by: Maren Mellen, Attorney-at-Law ATTORNEY FOR THE BOARD M. Sopko, Associate Counsel INTRODUCTION The Veteran had active military service from February 1969 to December 1970. This appeal to the Board of Veterans' Appeals (Board/BVA) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Because the claim requires further development before being decided on appeal, the Board is remanding the claim to the RO via the Appeals Management Center (AMC) in Washington, DC. REMAND Additional development of this claim is required before the Veteran's appeal can be adjudicated. Although the Board sincerely regrets the additional delay that inevitably will result from this remand, it is necessary to ensure there is a complete record upon which to decide this claim so he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist him in obtaining evidence necessary to substantiate this claim, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c), (d) (2012). The Veteran was diagnosed with renal cell carcinoma (RCC) in November 2007, and his right kidney resultantly was removed (nephrectomy) later that same month. See September 2009 VA outpatient treatment record. Contending exposure to herbicides (specifically, the dioxin in Agent Orange) while serving in Vietnam had caused the RCC, he filed this claim in March 2009. The RO denied his claim in October 2009. In response he submitted a Notice of Disagreement (NOD) in November 2009, and the RO issued a Statement of the Case (SOC) in March 2010. Subsequent to issuance of that SOC, he submitted additional evidence in October and November 2010, including a VA physician's statement and two private physician statements. Dr. M. H., Chief of Urology at the James A. Haley Veterans' Hospital and one of the Veteran's physicians, opined in a September 2010 letter that "taking into account that (the Veteran) is a non-smoker, has no family history of kidney cancer and his exposure to Agent Orange during his military service in Vietnam, it is as likely as not that (his) exposure to Agent Orange resulted in the development of kidney cancer." Additionally, in an April 2010 letter, Dr. D. J., the physician who performed the right kidney nephrechtomy, stated "it is not unreasonable to recognize" that Agent Orange exposure "should be considered a primary cause" of the RCC. Furthermore, Dr. S. M., another of the Veteran's physicians, noted in an October 2010 letter that "in the absence of a personal smoking history, a family history of renal cancer, or chronic exposure to known hazardous chemicals, I cannot exclude the possibility that Agent Orange exposure is the cause" of the Veteran's RCC. VA regulations provide that a Veteran who had active military, naval, or air service in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 (Vietnam era) shall be presumed to have been exposed during that service to an herbicide agent, unless there is affirmative evidence establishing he was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). For the purpose of this presumption, the term "herbicide agent" means a chemical in an herbicide used in support of the United States and allied military operations in the Republic of Vietnam during this period beginning on January 9, 1962, and ending on May 7, 1975, specifically: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and picloram. If a Veteran, who served in the Republic of Vietnam during the Vietnam era was exposed to an herbicide agent during active military, naval, or air service, certain specified diseases shall be presumptively service connected (meaning presumptively associated with that service), if the requirements of 38 C.F.R. § 3.307(a) are met, even if there is no record of such disease during service. 38 C.F.R. § 3.309(e). This list of diseases includes: chloracne or other acneform disease consistent with chloracne, Type 2 Diabetes Mellitus, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancers of the lung, bronchus, larynx, or trachea), soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma), ischemic heart disease, Parkinson's disease, and B-cell leukemias. 38 C.F.R. § 3.309(e) (2009 and Supp. 2010); see Notice, 75 Fed. Reg. 168, 53202-16 (Aug. 31, 2010). These diseases listed at 38 C.F.R. § 3.309(e), however, shall have become manifest to a degree of 10-percent or more disabling at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10-percent or more disabling within a year after the last date on which the Veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). Moreover, the Secretary of VA has determined there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); see also Notice, 61 Fed. Reg. 41, 442-49 (1996). The Secretary has clarified that a presumption of service connection based on exposure to herbicides used in the Republic of Vietnam during the Vietnam Era is not warranted for the following conditions: Cancer of the oral cavity (including lips and tongue, pharynx (including tonsils), or nasal cavity (including ears and sinuses); cancers of the pleura, mediastinum, and other unspecified sites within the respiratory system and intrathoracic organs; esophageal cancer; stomach cancer; colorectal cancer (including small intestine and anus); hepatobiliary cancers (liver, gallbladder and bile ducts); pancreatic cancer; bone and joint cancer; melanoma; non-melanoma skin cancer (basal cell and squamous cell); nasopharyngeal cancer, breast cancer, cancers of reproductive organs (cervix, uterus, ovary, testes, and penis; excluding prostate); urinary bladder cancer; renal cancer; cancers of brain and nervous system (including eye); endocrine cancers (thyroid, thymus, and other endocrine; cancers at other and unspecified sites; neurobehavioral disorders (cognitive and neuropsychiatric); amyotrophic lateral sclerosis (ALS); chronic peripheral nervous system disorders; respiratory disorders; gastrointestinal immune system disorders (immune suppression, allergy, and autoimmunity); circulatory disorders (including hypertension); endometriosis; effects on thyroid homeostasis; certain reproductive effects, and, any other condition for which the Secretary has not specifically determined a presumption of service connection is warranted. See Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21260 (May 7, 2009); Notice, 75 Fed.Reg. 32540 (June 8, 2010). Thus, service connection may be presumed for residuals of Agent Orange exposure by satisfying two requirements. First, a Veteran must show that he served in the Republic of Vietnam during the Vietnam War era or elsewhere outside of Vietnam where Agent Orange was used or sprayed. See 38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6). Second, the Veteran must have a diagnosis of one of the specific diseases listed in 38 C.F.R. § 3.309(e). See Brock v. Brown, 10 Vet. App. 155, 162 (1997). As indicated, renal (i.e., kidney) cancer is not one of the conditions identified in § 3.309(e) as presumptively associated with exposure to Agent Orange, indeed, to the contrary, it is a condition specifically excluded from this presumption. However, the availability of presumptive service connection for a disability based on exposure to herbicides does not preclude a Veteran from alternatively establishing entitlement to service connection with proof of direct causation linking his claimed disability to his military service. See Stefl v. Nicholson, 21 Vet. App. 120 (2007); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994); see, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation). Apparently because the RO did not consider or perhaps have opportunity to consider this medical evidence mentioned tending to support the notion that there is a correlation between the Veteran's kidney cancer and exposure to Agent Orange, the RO did not schedule him for a VA compensation examination for a more definitive medical nexus opinion concerning this possibility before initially adjudicating his claim or even since. So, in light of this additional evidence, the Board finds that a VA examination and opinion are needed to assist the Veteran in substantiating his claim. See McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 U.S.C.A. § 5103A(d)(2); and 38 C.F.R. § 3.159 (c)(4). Accordingly, the claim is REMANDED for the following additional development and consideration: 1. Schedule an appropriate VA compensation examination for a medical nexus opinion concerning the etiology of the Veteran's renal cell carcinoma (kidney cancer). He is hereby advised that failure to report for this scheduled VA examination, without good cause, may have adverse consequences on this pending claim. 38 C.F.R. § 3.655. The examination should include all necessary diagnostic testing or evaluation. The claims file, including a complete copy of this remand and the supporting medical statements mentioned, must be made available to and reviewed by the designated examiner for the pertinent medical and other history. The examiner is asked to indicate the likelihood (very likely, as likely as not, or unlikely) the Veteran's kidney cancer is the result of his military service, including especially exposure to Agent Orange. The examiner must discuss the rationale of the opinion, whether favorable or unfavorable, based on the findings on examination and information obtained from review of the record. 2. Then readjudicate this claim of entitlement to service connection for renal cell carcinoma in light of this and all other additional evidence, including the supporting medical statements that have been submitted since the SOC. If the claim is not granted to the Veteran's satisfaction, send him and his attorney a Supplemental SOC (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of the claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). _________________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).